1810. ministrators v. Justices of nistrator's transactions, in a contest between a creditor and MARCH, the security for the executor or administrator. Or should a resort to a Court of Equity be found necessary for a disco- Gordon's Advery of assets, which may be concealed by the executor, or may have gotten into the hands of legatees, or others, with Frederick. the assent or connivance of the executor or administrator, that Court might direct an account, as was done in this Court in the case of Taliaferro & Gaines v. Thornton & Wife,(a) against all parties, however remotely concerned in (a) May 5, interest; the same course I perceive to have been intimated by Judge Pendleton, in the case of Burnley v. Lambert,(b) (b) 1 Wash. and White, Whittle & Co. v. Banister's Executors,(c) which I shall notice hereafter; and to have been pursued by the present Chancellor of the Richmond District, in that of Clarke v. Webb and others. (d) 1806, MS. $12. (c) Ibid. 168. (d) 2 Hen. & To return to the case of Braxton v. The Spottsylvania Munf. 8, 9. Justices. The Court proceeds to say: "It may be objected that the act does not prescribe that a creditor shall not go against the securities in the first instance; and, therefore, that the action was well brought; to which this answer presents itself, that it is an established principle of construction, that where a statute has given a new remedy, without pointing out the mode in which this remedy is to be attained, the rules of the common law, and the practice of the Courts, founded upon the reason of the thing, shall be pursued." I subscribe most fully to this, as to every preceding part of the opinion, which is reported to have been unanimously given in that important case. Those who object to the delay which such a course of proceeding must require, would do well to consider that this is an additional remedy given by our law against executors; who, neither by the common law, nor by any statute in England, can be compelled to give bond and security for their conduct. And the creditor was, by the common law, as much without a remedy against the ordinary, (who was 1810. Gordon's Adninistrators V. Justices of MARCH, originally in the place of an administrator,) as he now is against an executor in England, under any statute of that country. For the ordinary, at common law, might have disposed of the whole of the intestate's personal chattels, Frederick and could not be compelled to grant administration, nor was even so much as obliged to pay debts; but several statutes being made by which power was given to him to grant the administration, and to pay the debts, he therefore obliged the administrator to bring in an inventory, and to see that it was distributed in payment of debts; and, finally, the statutes required (as our law does) that the administrator should give bond for the faithful performance of his duty. But the last statute upon the subject, 22 and 23 Car. II. c. 5. was never in force in this country; so that the remedy given by our acts of assembly is not, as was contended by Mr. Munford, a substitute for the action of debt upon a judgment against an executor suggesting a devastavit; but, as was said by the Court in the case of Braxton v. The Spottsylvania Justices, an additional remedy which our law has given to creditors, legatees, and distributees of persons deceased, for their benefit and security. Have they then a right to complain that they shall not be permitted to avail themselves of this additional remedy against an innocent security, until they shall shew the nature and amount of their claims; that the testator left assets to a certain amount; that they came to the hands of the executors, who have wasted them; and that there was suffi cient thereof to have satisfied their demands in a due course of administration? The only case that I have met with in the English books of an action at law brought upon an administration bond against the securities of the administrator, is that mentioned in the case of Greenside v. Benson, 3 Atk. 248. There the creditor, Benson, had brought an action against the administratrix on a bond of her husband, the intestate, for 300%. to which she pleaded that she had not assets ultra 541., which she paid into Court. Benson, not being satisfied 1810. with the inventory brought in by her, procured an assign- MARCH, ment of the administration bond, and put it in suit, by bringing three several actions, one against the administra- Gordon's Adtrix, and one against each of the securities; and assigned for breach that she had not exhibited a true and perfect in- Frederick, ventory. These causes came on to be tried, and no defence was made by the two securities, and there was judgment for the plaintiff by default. The securities brought a bill against Benson, the creditor, and Mrs. Hudson, the administratrix; and the relief prayed was, that the defendant, the administratrix, might indemnify the plaintiffs for being sureties in the administration bond, and for an injunction against Benson, the creditor, till an account should be taken between them and Mrs. Hudson, and till she should have satisfied Mr. Benson, as far as the assets would go, The counsel for the defendant, Benson, further stated, that the administratrix pleaded to the defendant's action, that she had assets only amounting to 55%. beyond what she had already paid, but the Jury found 2261. beyond the 55%, so that the creditor became entitled to both sums. Lord Ch. Hardwicke said, the administratrix could not then dispute the verdict which had been found against her; nor was the case of the sureties at all better, as the verdict was obtained against the administratrix, who was the proper person to try it; that he did not think it proper to have the whole account taken over again, or to alter what had been found by the verdict, and directed an account to be taken only of what was exhibited upon the inventory, and the verdict to stand as a security for so much as that should fall short to satisfy the defendant's principal and interest on his bond. ministrators V. Justices of If the law of England had been conformable to our act of 1792, c. 92. s. 33.(a) the latter part of this decree must (a) This act was first passhave been changed; for, undoubtedly, the securities in that ed in 1785, c. case could only have been made chargeable to the amount its commencement January of the assets found by the verdict. 61. and had 1, 1787. MARCH, 1810. ministrators V. Justices of But my principal object in citing this case was to shew, that in England they think it necessary to proceed separateGordon's Ad- ly against the administrator, and shew the amount of the assets which have come to his hands before they sue the Frederick sureties, instead of bringing a joint action against them all, before they have established either the amount of the assets, or the liability of the administrator, as the plaintiffs have done in this suit; and further to shew that that part of the decree, which declares that the verdict against the administratrix should stand as a security only for so much as the inventory might fall short of the payment of the creditor's debt, is according to the spirit of the decision in Braxton v. The Spottsylvania Justices; that the creditor must pursue the estate of the deceased until it is exhausted, before any suit can be brought against a security upon the administration bond. 168. In the case of White Whittle & Co. v. Banister's Execu(a) 1 Wash, tors,(a) Judge Pendleton, in delivering the opinion of the Court, said, "A creditor may, at law, either sue out execution upon a judgment obtained against the executors, and levy it on the visible property of the testator, if any; or, if none be found, 2dly. He may proceed against the execu tors, as for a devastavit, on account of a misapplication of assets; or, 3dly. A creditor may not know the state of the assets, the amount, nor the claims against the estate; he may therefore file his bill in equity to have a discovery of those matters, and on that discovery being made, may either proceed at law," (that is to say, upon the executor's bond, as I understand him,)" or that Court may retain the cause," (as was done in this Court in the case of Taliaferro & Gaines v. Thornton & Wife, before mentioned,) "and determine the disputes between the parties." This seems to me to be perfectly in conformity to the principles which were supposed to have been settled in the case of Braxton v. The Spottsylvania Justices. Upon these grounds, I am of opinion, that the opinion of the County Court in favour of the defendant upon the point reserved, was correct; and, therefore, that the judg ment of the District Court reversing that judgment ought to be reversed, and that of the County Court affirmed. Judge FLEMING. This case has been so fully stated and investigated by Judge TUCKER, that it is unnecessary for me to add any thing farther than to observe, that it seems now a settled principle, that a creditor of a deceased person cannot charge, or have recourse against the securities in an executor's or administration bond, until he has pursued the estate of the testator, or intestate, to the utmost extent of the law, and proved, by the verdict of a Jury, a devastavit on the executor or administrator, as the case may be, and then no farther than assets shall appear to have come into his hands; I therefore concur in the opinion, that the judgment of the District Court be reversed, and that of the County Court affirmed. By both the fudges, (Judge ROANE not sitting in the cause, on account of his being interested in a suit which involved the same point,) the judgment of the District Court REVERSED, and that of the County Court AFFIRM ED. MARCH, 18.0. Gordon's Administrators V. Justices of |